Justices Sotomayor and Gorsuch called a second illegal re-entry prosecution a constitutional absurdity, even as the Supreme Court denied review.
Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, said the government created serious constitutional problems when it convicted Mexican national Jesus Herrera-Salazar twice for the same continuous crime of being illegally in the United States.
The New York Post reported that the high court rejected his bid for review on Tuesday, in part because he had already been deported. The two justices still used a brief opinion to warn lower courts not to repeat what they labeled a constitutional absurdity under the Double Jeopardy Clause, the Fifth Amendment shield against being tried twice for the same offense.
Herrera-Salazar was first arrested in 2020. He pleaded guilty to illegally re-entering the United States after removal, served prison time, and was placed on supervised release.
That release came with a blunt condition: he had to remain in the United States. Leave, and he would violate the court’s terms. Stay, and he remained an illegal immigrant subject to being “found in” the country again.
Sotomayor and Gorsuch described the trap in plain terms. In the government’s eyes, they wrote, he broke the law whether he stayed put or tried to go.
Sotomayor, joined by Gorsuch, wrote:
"In the Government’s eyes, whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States [after his first release from prison], he would be breaking the law,"
That is not border control with clean lines. That is a court-built bind.
While still under that supervised-release order, Herrera-Salazar was stopped in traffic in Oklahoma. Prosecutors indicted him again and won a second conviction for being “found in” the United States, the same core illegal-re-entry conduct, pinned to a later date.
He served both sentences. Court documents show he was deported to Mexico in 2024.
His lawyers told the courts the second case violated the Fifth Amendment. They argued he was punished twice for the same continuous offense. The Denver-based 10th U.S. Circuit Court of Appeals disagreed and treated the convictions as separate crimes.
Sotomayor and Gorsuch rejected that reasoning. They said settled precedent and the logic of double jeopardy bar the government from charging the same continuous crime a second time merely by picking a new time marker.
Sotomayor, joined by Gorsuch, wrote:
"While Herrera-Salazar was caught in this bind, the Government prosecuted and punished him yet again for being ‘found in’ the United States, even though all agree he was forbidden to leave the United States."
The opinion called the setup a Hobson’s choice, no real choice at all. Stay and risk another “found in” count. Leave and violate supervised release. Either path handed prosecutors another swing.
Herrera-Salazar asked the Supreme Court to step in. The court refused. The denial rested in part on a simple fact: he was already gone, deported after both sentences.
Sotomayor and Gorsuch still put the constitutional warning on the record. They said the case raised serious constitutional problems and that they hope facts like these are rare.
Sotomayor, joined by Gorsuch, added this direct instruction to the bench:
"Should circumstances like these arise again, I encourage courts to avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning,"
Illegal re-entry after removal is a federal crime. Herrera-Salazar pleaded guilty the first time, faced a second conviction the government defended, and was removed to Mexico in 2024. None of that erases the Fifth Amendment limit the two justices flagged: prosecutors do not get a free second bite at the same continuous offense by shifting the calendar.
The 10th Circuit let both convictions stand as separate. The Supreme Court left that result untouched. The only lasting mark from Tuesday is the Sotomayor-Gorsuch caution that “found in” charging cannot become a revolving door around supervised-release conditions the government itself imposed.
Enforcing immigration law and obeying the Bill of Rights are not rival projects. A second charge for the same continuous crime, forced by a stay-or-else release order, is not toughness, it is a shortcut the Constitution does not allow.
